I'm pleased to announce that The Social Equality of Religion or Belief, edited by Professor Alan Carling, will be released in March by Palgrave Macmillan and is now available for pre-order. I have a chapter in the book titled, "The Bloating of the Constitution: Equality and the U.S. Establishment Clause," which, it is probably fair to say, falls on the skeptical side of the book's contributions. Here are the first few lines of my chapter:
The US Establishment Clause is in disorder. There are currently at least six different approaches to interpreting the ‘establishment’ component of the First Amendment injunction that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof...” (US Constitution, Amendment 1). Tests of church-state separation, non-coercion, secularity, historical practice, non-endorsement and neutrality all have been used by the Supreme Court at one time or another across a broad panoply of cases. Sometimes two or more of these tests have been squeezed together within a single case, with implied reassurances that the result does not really depend upon the test anyway. At levels below the Supreme Court, this sort of doctrinal bricolage is often only prudent self-protective practice by judges compelled by the Court’s opacity to hedge their bets.
I have argued in other work that these doctrinal confusions are in part the result of the Court’s propensity to elevate a single value to master status in evaluating Establishment Clause controversies (DeGirolami 2013). Dependence on equality or neutrality or separationism as the preeminent constitutional touchstone in one case is felt by the Court to be inadequate or incomplete in a second or third; additional tests are thus cobbled together to accommodate what are perceived in subsequent cases to be distinctive circumstances. Single-value theories of the Establishment Clause misconstrue the conflicts at stake by leveling them – compressing them so as to be capable of processing through the filter of the selected value. Call this phenomenon constitutional flattening. One result of constitutional flattening is the multiplication of Establishment Clause theories to remedy the practical deficiencies in any one of them as they are applied case to case.
This Chapter explores a different side effect of monistic approaches to the Establishment Clause: constitutional bloating – the expansion of the scope of the Establishment Clause without the formality of an actual judicial ruling so expanding it. Courts that rely on an abstract value or interest in deciding constitutional controversies bloat the Establishment Clause by trading covertly on its political popularity, conceptual malleability and indeterminacy of meaning. Merely by recurring to or invoking the selected value – always one with vague but deep rhetorical appeal – courts swell the scope of the Establishment Clause without the need explicitly to acknowledge that expansion in their opinions. The problem is not merely that Establishment Clause bloat renders dubious any claims about the predictability of single-value approaches to constitutional adjudication. It is also that judges are thereby licensed to broaden the reach of the Clause by suggestion, allusion, or implication, without openly and clearly stating what they are doing.
The value of equality is by far the most potent and effective instrument of Establishment Clause bloat. This is so for two reasons: first, equality is the overriding legal value of our age – the defining constitutional issue of our time. The rhetorical power of equality is devastating, eliciting in its most ardent adherents something approaching militant zeal. As Steven Smith has put it, “equality is a juggernaut that overwhelms pundits, politicians, and professors, and threatens to flatten individuals or institutions that dare stand up against it” (Smith 2014). Simply to invoke the value of equality in favor of any given outcome is frequently perceived as a self-evident and irrefutable justification for it, one that it would be scandalous to question. Second, equality is multivalent, and equalities of different types may and often do conflict. Equality of opportunity is not equality of outcome; procedural equality of treatment is not the ambitious equality of ‘concern’ or ‘respect’ for every person’s substantive commitments; and though neutrality is a kind of equality, it is not the only kind. Moreover, there may be internal conflicts even within equalities of the same type. The fearsome cultural, legal and political might of equality, coupled with the multiplicity and ambiguity of egalitarian meanings, have united to create a singularly effective tool of Establishment Clause bloat.
What is the most consequential religious response to same-sex marriage in recent times?
To ask this question is to place same-sex marriage as the status quo and to frame religious responses to it as reactionary. But what if the right answer to the opening question is Justice Kennedy's opinion for the Court in Obergefell v. Hodges itself?
Isn't it?
These were some of the thoughts that went into my panel remarks a week ago at the AALS Law & Religion Section.
I've spoken on a number of difficult and sensitive topics before a range of audiences. But participating in that panel had me more twisted up with concern than I can recall for any other panel or talk. So I decided to square up with the audience and identify just how awkward the situation was for me, and why.
I explained that I was there as an unbeliever, speaking to a room packed with true believers. Most in that audience truly believed that the Constitution of the United States forbids states from continuing with the husband/wife understanding of civil marriage. They truly believed that the Supreme Court of the United States appropriately ordered a redefinition of civil marriage in state law. They truly believed that federal law commands what the Supreme Court did.
And I did not. None of it.
That's awkward, isn't it? What could profitably be said between us, when we were so far apart on the main issue?
My basic tack was to argue that there was religion on both sides--that the object of their belief could itself be understood in religious terms. I gave several reasons for understanding Justice Kennedy's constitutionalization of same-sex marriage in Obergefell in religious terms. Among them:
1. The language of the opinion: The opinion speaks in terms of revelation, as I've previously argued.
2. The operative understanding of the Constitution: The Constitution of Obergefell is not an authoritative legal document with fixed, ascertainable legal content. Instead, it is "a charter protecting the right of all persons to enjoy liberty as we learn its meaning." Or, as the plurality opinion described the Constitution in Casey: "a covenant ... [with] written terms [that] embody ideas and aspirations that must survive more ages than one."
3. Justice Kennedy's professed self-understanding: In a 2005 interview with the Academy of Achievement, Justice Kennedy said that he thought people would be happiest if they could "find a profession ... where [they] manipulate symbols that have an intrinsic ethical content." That's what he think his job requires. Asked about the most important qualities for achievement in his field, Kennedy answered that it was important to understand that "the framers wanted you to shape the destiny of the country." And that's what he believes he is doing in his constitutional lawmaking.
4. The operative understanding of the judicial role: A case like Obergefell, Kennedy's opinion suggests, does not call for dry legal analysis and cool, detached reasoning. The good judge must respond to the petitioners' stories. The operative understanding of the judicial role is to respond to the petitioners' stories, and the petitioners' hopes, and the universal fear of loneliness (among other things), by enforcing the central meaning of a fundamental right that is now manifest in our basic charter.
5. The social/political/cultural response: "Love wins" is not a typical response to the output of constitutional litigation. Yet people have invoked all of the theological virtues (faith, hope, and love), in describing the opinion. The White House lit up in a rainbow. President Obama described the decision as delivering "justice like a thunderbolt." People are using the opinion as a type of scripture for their marriage ceremonies.
The point of this exercise was not simply, or even primarily, to undermine the legal authority of Obergefell. It is law of a sort, just as any other erroneous Supreme Court decision that has not been overruled is law of a sort. The real point is that Obergefell as religious response does not enable the same type of reasoned disagreement that more typically legal opinions generate. If one does not accept Justice Kennedy's revelation, as I do not, there's not that much to talk about as lawyers. Which is unfortunate. Personal testimonies and conversion certainly have their place in human experience. But these are not the sort of thing that make for good constitutional law.
I was hoping someone would give me a chance to say something about Monday’s oral argument in Friedrichs v. California Teachers Association, and MOJ-friend Michael Sean Winters graciously obliges over at his blog in a post about the latest “assault” on unions. Michael Sean and I have been around before on some issues about Catholic social teaching and unions, so why stop now?
One can, as I do, subscribe to the Catholic Church’s teaching from Rerum Novarum on about the role of unions in civil society, appreciate much in the insightful paper by Lew Daly to which Michael Sean cites, and yet think all of that has nothing to do with the issues in Friedrichs.
For starters, I think Michael Sean is a little cavalier in writing that Friedrichs is “not really about the First Amendment at all.” That’s a conclusion, not an argument. And on the law of the First Amendment, Friedrichs poses some hard questions (unless, I suppose, one is prepared broadly to countenance compelled subsidization of speech). I am not sure the point of Michael Sean’s initial hypotheticals about violations of trade secrets and trademarks, but the issue in Friedrichs strikes me as quite different. No one doubts that violations of trade secrets and trademarks can be sanctioned. But can the state require as a condition of public sector employment that a non-union member pay an agency fee? That’s a difficult question, and the answer the Court gave almost 40 years ago in Abood v. Detroit Board of Education is badly reasoned (as just one example, by assuming the constitutionality of compulsory payments based on two private sector union cases, Railway Employees’ Department v. Hanson and Machnists v. Street, that dealt with the First Amendment issue in a sentence and not at all, respectively). A cite to Rerum Novarum doesn’t resolve the free speech question.
And then there’s the basic distinction between private and public sector unions. The permissibility of agency dues in the private sector isn’t at issue in Friedrichs (conceded at the outset of oral argument by Michael Carvin), so it’s a little hard to see how this is an all-out “assault” against unions. Nor does Friedrichs question the permissibility of agency shop arrangements in either the public or private sector, only whether non-union members must subsidize a public employee union’s political activity—so the arguments in Michael Sean’s penultimate paragraph about union formation seem to me beside the point. The line between collective bargaining and political activity for public sector unions is impossible to draw, and that’s the core of the plaintiffs legal argument against the compulsory agency fee. As Justice Kennedy put it at oral argument:
The union basically is making these teachers compelled riders for issues on which they strongly disagree. Many teachers think that they are devoted to the future of America, to the future of our young people, and that the union is equally devoted to that but that the union is absolutely wrong in some of its positions. And agency fees require, as I understand it—correct me if I'm wrong—agency fees require that employees and teachers who disagree with those positions must nevertheless subsidize the union on those very points.
Finally, could I make a plea here for scholars working on Catholic social thought to spend a little time confronting the classic argument by Ralph Winter and Harry Wellington about public sector collective bargaining before waxing rhapsodic about Rerum Novarum and the unalloyed blessings that unions provide? As Rick Hills put it a while ago, the inelasticity of demand for their services and manipulation of the political process to their advantage means that public employee unions are differently situated than, say, trade unions. There are all sorts of bad policies created when public union-controlled services (prisons and public schools in some areas, for example) are consumed largely by lower income people, which is, at least arguably, part of the reason why we have so many prisons and such bad public schools (as Rick points out, the prison guard union in California was a powerful lobby for "three strikes, you're out" life sentencing). I hope the plaintiffs prevail in Friedrichs because that’s the right legal outcome, but I also think it would be a small step to correcting some of our injustices and policy distortions.
Here, in Books & Culture, is Alan Jacobs's review of Larry Siedentop's "Inventing the Individual: The Origins of Western Liberalism." Jacobs writes ,
. . . Siedentop, an American political philosopher who taught for many years in England, has here written, if not quite a magnum opus, nevertheless an ambitious and assured narrative that covers many centuries and several European cultures but pursues a single question: Where does the Western world's universally held idea that rights are invested in individuals come from? His answer suggests that those who have looked at the 16th century and the immediately preceding period as the key moment are taking too short a view. He would have us look back to far earlier days, and is willing to overcome his profession's resistance to Big History in order to explain why. . . .
In the recent issue of Touchstone, James Hitchcock warns ("Bargain Debasement") that "secular credibility is a devilish temptation." A bit:
. . . The terms of Satan's bargain have been clear for a long time: Christianity is losing adherents and, even more seriously, losing influence and credibility. It will not prosper once again until it humbly accepts enlightenment from the children of this world. The benefits of this bargain are so obvious that only dogmatic stubbornness prevents its being ratified.
Alas! Some among Jesus' modern disciples have unwittingly sacrificed themselves for the rest by forging ahead to test the bargain, and they have been left with ashes. . . .
It's now occurring at the Online Library of Law and Liberty. Professor Richard Epstein has the lead essay. Here is the most recent response by Professor Andrew Koppelman. It was an honor for me to respond to Professor Epstein in this essay. Professor Paul Moreno's will be the final response, and Professor Epstein will respond. Here's a bit from the beginning of mine:
Professor Richard Epstein has performed a welcome service in reminding us of the classical liberal case for the freedom of association. The classical liberal champions the primacy of rights as guarantors of the individual’s sovereignty to make free dealings with other sovereigns. He values rights as safeguards of the freedom to make moral and economic choices, to unite with others of like mind, and promptly to divest when the benefits of union are no longer perceived. He distrusts rights as claims for the imposition of obligations that override others’ sovereignty, reserving such mandates for special cases—force and fraud, as well as monopolistic control.
As Epstein has incisively noted elsewhere, discriminating associations are features of well-ordered societies in which people disagree about the good life, much as discriminating palates are features of well-ordered societies in which people disagree about good taste.[1] Association implies discrimination; to include some is to exclude others. Discrimination is legally wrongful only when it completely blocks a class of persons from access to a particular set of commoditized goods and services. But it is not legally wrongful if such persons feel the offense of exclusion but still can access alternative market channels. Respect for rights is supposed to limit the power of the state, not enhance it. All this is an appealing view of associational freedom in many ways.
Why, then, is this view so much in retreat? For it is today in open and full retreat. As Epstein’s Liberty Forum essay shows, the scope of antidiscrimination law, and the zeal with which it is enforced, have greatly increased over the last few decades. The power of government to mandate proliferating and ever more rigorous norms of equality has accelerated and shows no signs of abating. More perplexing still is that a significant and growing number of Americans, especially those in elite circles (including in younger generations), have acquired a wolfish appetite for measures that contract First Amendment freedoms and swell the state’s power to stamp out discrimination of increasingly recondite varieties wherever they may exist. Epstein notes all this and rightly laments it. But he does not explain it.
What happened to the libertarian, economically-inflected, live-and-let-live vision of the freely associating society?
Many things that this brief response to Epstein cannot comprehensively catalog. Yet one explanation for the classical liberal retreat lies in its failure to account for the psychologically affective features of law—and in particular its blindness to the influence of its own marketized and contractualized conception of First Amendment freedoms, including associational freedom, on the civic virtues and ideals of the citizenry. Law gives direction; it teaches, orders, and ranks; it creates hierarchies. The classical liberal model of law is no exception.
The Torts and Compensation Systems Section of the AALS had a terrific panel on Friday afternoon, the topic of which was the 100th anniversary of MacPherson v. Buick Motor Co. and included presentations by the most interesting (in my view) contemporary scholars in tort law, John Goldberg and Ben Zipursky.
The highlight of the session for me, though, was the presentation of the Prosser Award for outstanding achievement in the field to Aaron Twerski of Brooklyn Law. I've long admired Twerski's work and his central role in drafting the Third Restatement on Products Liability. What I did not know--and was recounted by Twerski in his short acceptance speech on Friday--was that he almost did not become a law professor were it not for some good fortune in 1967. Twerski was at the time a teaching fellow at Harvard Law School, which provided an automatic path into a law teaching position. But Twerski (a Hasidic Jew) alone among his colleagues that year did not get a teaching position because, as he put it (and I am quoting here from memory), "I looked like this," pointing to his skullcap and his long beard, and "people were more straightforward about such things back then than they are now." Late in the year, however, he received a call from John Murray (then the acting dean at Duquesne) inviting him to fill a teaching position vacated on account of an unexpected retirement.
As Twerski recounted the story, were it not for that offer some 50 years ago, he would have returned to practice and never set out on his academic career. He concluded, "I would like to think such discrimination is a thing of the past, but I fear it is not." I was especially moved to learn that John Murray (a Catholic and later dean at Villanova Law and president of Duquesne, who died last year) and a Catholic university played such an important role in launching Twerski's distinguished career.
There's a fascinating op ed in today's NYT by Judith Shulevitz, misleadingly (I think) titled "It's Payback Time for Women." She presents a number of arguments for the "U.B.I." proposals being considered in countries like Finland, Switzerland, and Holland. She does begin with the "feminist" argument, and succinctly describing the politics of the feminist arguments for and against proposals for offering wages for care work. She describes how "mainstream feminism" (at least in the U.S.) rejected this idea, buying into the prevalent assumption about motherhood:
It’s a lifestyle choice, not a wage-worthy job, and no one other than parents should pay for it. Wages for child rearing and housework? When one feminist collective took up that cry in the 1970s, it was more or less drummed out of the second-wave feminist movement, which aimed to get women into the work force, not pay them to stay out of it.
If mothers are glorified hobbyists who produce less value than nonmothers, it follows that they’re getting a free ride on everyone else’s labor. This can lead to tensions between colleagues, and also colors relations between breadwinning husbands and stay-at-home wives, who notoriously have less bargaining power in their households.
She argues, though, that
this view of motherhood gets it exactly backward. Actually, it’s society that’s getting a free ride on women’s unrewarded contributions to the perpetuation of the human race. As Marx might have said had he deemed women’s work worth including in his labor theory of value (he didn’t), “reproductive labor” (as feminists call the creation and upkeep of families and homes) is the basis of the accumulation of human capital. I say it’s time for something like reparations.
(Citing very different authorities, and not using the language of 'reparations', I've made similar arguments (see here and here).
But Shulevitz then goes on to address many other arguments for a U.B.I., coming from many different directions: that's it's increasingly becoming a necessary condition for a just society, in light of the growing gap between the rich and the poor in America, and the likelihood of more jobs being lost to computers in in the near future, including many skilled service jobs typically associated with women. She offers data to counter arguments that U.B.I. represents a moral hazard, that it actually permits people to manage their careers more prudently, rather than disincentivizes them from working at all. She discusses experiments and research suggesting that basic income policies have been effective in mitigating poverty, particularly specifically female kinds of poverty.
Shulevitz suggests that U.B.I. proposals are springing up from the right as well as the left. Honestly, I do not know much about these arguments, but I would love to hear what some of the other MOJ'ers think.
For one thing, I do wonder if some of the "just wage" and "family wage" arguments might, if re-examined from a more feminist perspective, support these proposals as well. As Schulevitz argues,
The U.B.I. would also edge us toward a more gender-equal world. The extra cash would make it easier for a dad to become the primary caregiver if he wanted to. A mom with a job could write checks for child care and keep her earnings, too. Stay-at-home parents would have money in the bank, more clout in the family, and the respect that comes from undertaking an enterprise with measurable value. And we’d have established the principle that the work of love is not priceless at all, but worth paying for.
I just finished the audiobook version of Robert Putnam's highly praised book, Our Kids: The American Dream in Crisis. In his concluding chapter, in which he offers myriad rationale for 'why we should care about any of this' and policy suggestions admirably borrowed from both the political right and the left, Putnam offers an enthusiastic nod to the moral leadership of Pope Francis:
The most important service that Pope Francis has rendered to men and women of all faiths and of no faith at all is to remind us of our deep moral obligation to care for our neighbors and especially for poor kids. 'Almost without being aware of it,' [Pope Francis] said in 2013, 'we end up being incapable of feeling compassion at the outcry of the poor, weeping for other people's pain, and feeling a need to help them, as though all this were someone else's responsibility and not our own. when we isolate young people, we do them an injustice: young people belong to a family, a country, a culture, a faith. They really are the future of a people.'
There is much we could read to help us live out this Year of Mercy well. I'd highly suggest Our Kids, for Putnam's (mostly) non-ideological cast on a central issue of our time, presenting evidence both for 'family structure'/'cultural' causes of poverty in American and economic ones too. But I'd mostly suggest it to experience the gripping stories of 'our kids.'
My father and step-mother both spent their careers working in schools for the most disadvantaged. They've been a remarkable example to me--and I pray I can adequately witness to the responsibility we have for the 'least among us' to my own children. But as many great minds from Putnam, to Charles Murray, to Arthur Brooks, have revealed these last few years, the growing socioeconomic divide in our country today is notably distinct from other eras of American history. Our Lord told us, 'The poor will always be among us," but these days, the poor are scarcely among 'us' (for Putnam, all college educated are considered, for simplicity, 'upper-middle class'). We live in different worlds: different family circumstances and different schools and communities. This, in itself, is troublesome. Putnam is right, and we Catholics know this quite well: we have a deep moral obligation to care for the poor, but today, they may not be in our kid's schools, our neighborhoods, our parishes. This makes the exercise of our obligation much more difficult for us than it was in the past, difficult to seek out ways to serve, but also difficult to bring our own children into community with the more disadvantaged; recognizing this, in itself, may be just the grace we need to act.
March by Palgrave Macmillan and is now available for pre-order. I have a chapter in the book titled, "The Bloating of the Constitution: Equality and the U.S. Establishment Clause," which, it is probably fair to say, falls on the skeptical side of the book's contributions. Here are the first few lines of my chapter: